1. Witnesses' out-of-court statements that are testimonial are barred under the Confrontation
Clause unless the witnesses are unavailable and the defendant had a prior opportunity to
cross-examine, regardless of whether such statements are deemed reliable by the court.

2. Under the facts of this case, the admission into evidence of parts of the confession of a
coconspirator who was absent from trial and whom the defendant had not had an
opportunity to cross-examine violated the defendant's right of confrontation.

3. The general rule concerning application of an overruling decision is that it applies
retroactively to all similar cases pending as of the date of the overruling decision,
regardless of when the cause of action accrued.

4. Under K.S.A. 60-460(i)(2), hearsay statements of a coconspirator or coparticipant which
implicate the accused and are made after the crime has been consummated are not
admissible against the accused.

5. When reviewing a constitutional challenge to the admission of evidence, an appellate
court applies the federal constitutional harmless error rule. Under that rule, an error may
not be held to be harmless unless the appellate court is willing to declare beyond a
reasonable doubt that the error had little, if any, likelihood of having changed the result of
the trial.

6. Violation of the Confrontation Clause is subject to analysis under the federal harmless
error rule. The correct inquiry is whether, assuming that the damaging potential of the
cross-examination was fully realized, a reviewing court might nonetheless say that the
error was harmless beyond a reasonable doubt. Whether such error is harmless in a
particular case depends upon a host of factors, all readily accessible to reviewing courts.
These factors include the importance of the witness' testimony in the prosecution's case,
whether the testimony was cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material points, and, of course the overall
strength of the prosecution's case.

7. The two-step analysis of harmless error utilized in State v. Tosh, 278 Kan.
83, 91 P.3d
1204 (2004), and State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998), has no
application
to the facts of this case.

8. In reviewing a trial court's decision regarding the suppression of a confession, an
appellate court reviews the factual underpinnings of the decision by a substantial
competent evidence standard and the ultimate legal conclusion by a de novo standard.

9. The erroneous admission of a defendant's involuntary confession is measured by the
federal harmless error rule.

10. An appellate court does not reweigh evidence, pass on the credibility of witnesses,
or
resolve conflicts in the evidence.

11. Whether suspects need to be re-Mirandized after waiver of those
rights depends upon the
totality of the circumstances.

12. Under the facts of this case, it was unnecessary as a matter of law for detectives to
readminister Miranda warnings to the defendant once he had waived his rights and
confessed.

13. In determining whether a confession is voluntary, a court is to look at the totality
of the
circumstances, including the duration and manner of the interrogation; the ability of the
accused on request to communicate with the outside world; the accused's age, intellect,
background and fluency in the English language; and the fairness of the officers in
conducting the interrogation.

14. The essential inquiry in determining the voluntariness of a statement is whether
the
statement was the product of the free and independent will of the accused. The burden of
proving a suspect's statement was voluntary rests with the State.

15. Whether a confession is voluntary is a conclusion of law.

16. An appellate court's threshold consideration when reviewing the admissibility of
evidence
is relevance. Once relevance of photographs is established, an appellate court reviews
whether they are cumulative under an abuse of discretion standard.

17. Convictions of felony murder and the underlying felony of aggravated kidnapping
are not
multiplicitous.

18. Generally, where constitutional grounds are asserted for the first time on appeal,
they are
not properly before this court for review.

19. A timely and specific objection for the admission of evidence is necessary to
preserve the
issue for appeal.

20. A defendant's right to confront witnesses against himself or herself under the
Sixth
Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of
Rights is not violated when the State presents the jury with evidence of his or her
statements to law enforcement.

Korey A. Kaul, assistant appellate defender, argued the cause and was on the
brief for appellant.

Tamara S. Hicks, assistant county attorney, argued the cause, John P.
Wheeler, Jr., county attorney, and
Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: For Giang T. Nguyen's (Giang) involvement in actions against the Giang
Nguyen family (no relation) on November 11, 2002, he was convicted of first-degree felony
murder, aggravated kidnapping, five counts of kidnapping, aggravated burglary, conspiracy to
commit kidnapping, and conspiracy to commit aggravated burglary. This court hears his appeal
pursuant to K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment imposed).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in allowing into evidence certain information from the
confession by coconspirator Ngan Pham? Yes, but it was harmless error.

2. Did the district court err in denying Giang's motion to suppress his own
statements to police? No.

3. Did the district court err in allowing into evidence certain photographs? No.

4. Did the district court err in determining that Giang's convictions of felony
murder and aggravated kidnapping were not multiplicitous? No.

5. Were Giang's rights of confrontation violated when the district court admitted
his own statements into evidence? No.

Accordingly, we affirm.

FACTS The Nguyen family lived together in a home located at 522
Colony in Garden City,
Kansas. The family consisted of the father, Giang Nguyen; the mother, Bau Tran; two sons,
Thang and Thai Nguyen; and two daughters, Ann and Hong Nguyen.

Around 4:30 a.m. on November 11, 2002, Thai entered the garage on his way to work. As
he went through the garage, a masked gunman ordered him to put his hands behind his head. The
gunman forced Thai into the doorway of the house and pushed him to the floor.

Ann was in the kitchen when she heard Thai make a strange noise. As she looked to see
what was going on, two masked gunmen pushed their way into the residence. The men told Ann
and her brother Thang to lie down on the floor in the living room.

When the father came out of his bedroom, the gunmen forced him to lie down on the
living room floor as well.

One of the gunmen went into the bedrooms; he forced Hong and her mother into the
living room at gunpoint and made them lie down next to the other family members.

Three masked gunmen were now in the house. After all the family members were in the
living room, one of the gunmen tied up the family members with ripped T-shirts. He then turned
to his associate and said "Nam, watch them. If they move, shoot them all."

Thang then said, "Nam, what are you doing?" Hong stated, "Nam, whatever you want to
take, take it." Ann also stated, "Nam, let us go." Thang then made a break for the kitchen.

While gunman "Nam" pursued Thang, Thang's two sisters ran to the neighbors' house to
call the police. After Thang ran into the kitchen, he was shoved to the floor by one of the gunmen
and shot twice. Shortly afterward, the three gunmen ran out of the residence.

According to the coroner, Thang died of internal bleeding due to multiple gunshot
wounds. One gunshot entered the left side of his chest and eventually lodged in his right thigh,
perforating his lung and other organs. This shot was almost straight downward and, according to
the coroner, was the most lethal. The other gunshot, which was slightly downward, entered
Thang's left back and exited his left chest, then entered and exited his left forearm. The coroner
later opined that the back shot happened first.

After hearing of the home invasion on the news, a clerk at the local Kwik Shop called law
enforcement to advise that three Vietnamese men had come into the store around 4 a.m. that day.
Law enforcement retrieved the surveillance tape which revealed three Vietnamese men later
identified as Ngan Pham, the defendant Giang, and his brother Nam Nguyen.

David Falletti, KBI special agent, assisted the Garden City Police Department and took
Ngan Pham into custody in Liberal the next day, November 12. After the interview of Ngan
Pham, Falletti obtained a search warrant for Pham's 1991 blue Pontiac Firebird. The search
revealed a coat which appeared to match one that Pham was wearing in the Kwik Shop tape. The
search also revealed a fully loaded Ruger .45 caliber pistol, a fully loaded Smith and Wesson 9
mm pistol, a fully loaded Smith and Wesson .40 caliber pistol, an FEC .45 caliber pistol, and a
loaded .22 caliber RG Industries revolver, plus five black ski masks, numerous yellow gloves,
and a water bottle that was similar to the bottles that had been purchased from the Kwik Shop.

Giang voluntarily turned himself in to Saline County authorities on November 13, 2002, 2
days after the home intrusion. Garden City Detectives Jerry Schiffelbein and Larry Watson drove
to Salina to interview him. After the detectives obtained Giang's written confession with the aid
of an interpreter, Watson transported him to the Finney County jail in Garden City.

Motion to Suppress

Giang filed a motion to suppress the statements he made to Garden City detectives on
November 13. Specifically, he alleged that the interpreter used during the interview was not
qualified under K.S.A. 75-4351(e); that he did not understand the rights he waived; and that he
was not readministered Miranda warnings prior to being asked questions by Watson
on the drive
to Garden City.

At the suppression hearing detectives Schiffelbein and Watson, interpreter Dam Dinh,
and Giang all testified.

Dam Dinh testified that he assisted Garden City detectives in interpreting Vietnamese
during the interview According to Dinh, he grew up in Vietnam, came to the United States when
he was 16 years old, and was 31 at the time of the suppression hearing. He described himself as
being "pretty much" fluent in English, having learned it by attending high school in the United
States. He had translated for Dodge City High School and the Dodge City Police Department
between 1992 and 1995 and was currently the main interpreter for the Saline County Police
Department. Dinh testified he had not taken any courses on interpreting.

Dinh testified that during the interview he, two detectives, and Giang were present. He
translated the detectives' questions into Vietnamese and Giang's answers into English. He had no
problems communicating with Giang and believed that Giang understood what he was saying. He
also testified that he understood what Giang was saying to him and to the detectives. Dinh
testified that he interpreted for Giang to the best of his ability. He did not believe Giang was
under the influence of alcohol or drugs, and Giang appeared to be "lucid" and "understanding."

According to Dinh, he was compensated by Finney County for the services he provided.
He did not know Giang, the decedent Thang Nguyen, Thang's family, or any of the police officers
involved in the investigation.

Dinh further admitted that before interpreting for Giang, he did not ascertain which part
of Vietnam Giang was from. He testified that the cultural differences between South and North
Vietnam are subtle, but there is a difference in accent.

Detective Schiffelbein then testified, stating that Detective Larry Watson and Dam Dinh
assisted him with Giang's interview which began at 3:58 p.m. and lasted almost 3 hours.

According to Schiffelbein, the detectives identified themselves through the interpreter and
explained to Giang that they needed to speak with him about incidents that had happened in
Garden City. The interpreter and Giang were each provided with a copy of Miranda
warnings
translated into Vietnamese, while Schiffelbein retained an English copy. Schiffelbein read aloud
the Miranda warnings in English, and after he completed each line, the interpreter
repeated them
to Giang in Vietnamese. After the completion of reading each line, Giang was instructed to initial
his Miranda form if he understood what was advised of him.

Schiffelbein testified that Giang did not verbally respond after the reading of each
Miranda line, but he initialed next to each statement as Schiffelbein had requested.
Schiffelbein
then asked Giang if he understood each of these rights as had been explained to him, and Giang
responded "Yeah" in English. Schiffelbein then asked Giang if he would "speak . . . having his
[Miranda rights] in mind," and Giang said he would.

According to Schiffelbein, Giang said he was 24 years old, had grown up in Vietnam, and
had completed the 6th grade there. He came to the United States in 1996 and went to high school
for approximately 2 months. At the time of the interview, Giang had been in the United States for
6 years.

Schiffelbein testified that he did not threaten Giang or promise him anything in order to
coerce Giang to elicit a response. According to Schiffelbein, Giang did not indicate that he did
not want to talk to the detectives, and he did not ask for an attorney. In addition, Schiffelbein
stated that Giang did not ask for a break or to use the bathroom. Although two breaks were taken,
Giang opted not to use the restroom but was given a soda.

Based on Schiffelbein's observations, Giang did not appear to be under the influence of
drugs or alcohol, but rather appeared relaxed and cooperative. Giang occasionally answered the
detective's questions without the use of the interpreter and provided short answers in English. On
occasion, Giang asked to have the question repeated. The interview was video recorded by the
Saline County jail; however, there was no audio on the tape. During the interview Giang was
leg-shackled to his chair.

Schiffelbein asked Giang to make a written statement, and Giang agreed. He was not
readministered Miranda warnings prior to giving the written statement. After this
statement was
obtained, Giang was escorted to the Saline County jail, where he was held until he was
transported back to Garden City.

According to Giang's hearing testimony, he did not understand the interpreter all of the
time. He further stated that he can read Vietnamese but has trouble with pronunciation. Finally,
he testified that during the interview he was concerned and upset for his girlfriend because she
was expecting a child soon.

Detective Watson also testified, stating he was involved with the Salina interview.
Beginning at 9:07 p.m., approximately 2 hours after the interview was conducted, Watson
transported Giang to Garden City. Giang rode in the passenger seat of the truck secured to the
seat belt with leg shackles and handcuffs.

According to Watson, he and Giang engaged in "small talk" in English during the
beginning of the trip. Giang initiated the conversation by asking what was going to happen to
him. Watson informed Giang that he could not answer those types of questions. The conversation
transitioned to what things were like over in Vietnam and the quickest way to get from Salina to
Garden City. Giang fell asleep around Ellsworth and did not wake until several hours later when
they were outside Garden City.

Watson testified that shortly after Giang awoke, he asked Giang to show him where the
incident occurred. Giang told the detective that he would point out the location, but he did not
want to stay, because the people there did not like him. Watson followed Giang's directions, and
Giang pointed to and described the house at 522 Colony. Giang was then delivered to the Finney
County jail.

Watson testified that he is approximately 6 feet 3 inches tall and weighs 240 pounds;
Giang is 5 feet 6 inches tall and of small build. Watson stated that during the approximate 3-hour
drive, Giang did not request to stop and use the restroom; he also did not volunteer whether he
was hungry or thirsty. He admitted that Giang was not readministered Miranda
warnings before
any of the truck conversation from Salina to the Finney County jail.

According to Giang's hearing testimony, during the drive to Garden City the detective did
not ask him if needed to go to the bathroom or if he wanted food or a drink. He also testified he
was too afraid to ask the detectives for these items.

The district court denied Giang's motion to suppress and ruled on two of Giang's specific
arguments:

"[1] Well, let's deal with the question of the interpreter first. The statute says that a
qualified interpreter shall be appointed. First of all, the State does not have, to my knowledge, a
general qualification standard for interpreters, either Vietnamese, Spanish, or any other language
except perhaps for the signing, deaf and dumb folks. So the Court has to consider the
qualifications of an interpreter on a case-by-case basis.

"In this case I find that Dam Dinh was qualified based on his experience, and his
testimony here in court clearly showed to me that he at least can speak English and there was no
challenge to his ability to speak Vietnamese. . . .

"[2] With regard to the Miranda issue, it appears to the Court that
from observation at
least by three people, that the defendant was not under the influence of any drugs, alcohol, or any
other emotional distress that was readily apparent to those who were in the room, that he was not
threatened, coerced or in any way forced into making a statement. That he understood, as near as
we can tell, the questions that were asked to him and the answers that he provided through the
interpreter. They seem to be apparently voluntary. And level of education was such that he could
clearly understand the nature of the proceedings against him. Obviously the interpreter at the
time,
Mr. Dinh, had had experience with law enforcement and legal matters and should have been and
I'm convinced that he was, able to convey those legal concepts to the defendant."

The court did not separately address the admissibility of Giang's statement to Watson
during the truck ride from Salina to Garden City.

Jury Trial

At trial, Watson verified photographs he had taken during the autopsy of Thang Nguyen.
Exhibit 58 depicts Thang lying on his back, shirtless, exposing two gunshot wounds on the left
side. Exhibit 54 is a close-up shot of Thang's face. The defense objected arguing the two exhibits
were cumulative and overly gruesome. The court overruled the objection after the State offered
the following:

"The photograph 54 is used–will be used by the State to simply establish
the identity of
the person upon whom the autopsy was performed by the pathologist. The photograph 58 will be
used by the State . . . to assist the jury in determining and to show the jury various entrance and
exit wounds on the body. They are not depicted over and over and over again, Your Honor."

The Nguyen family members testified to the events at the time of the home intrusion. In
addition, Hong testified she had told police that when one of the gunmen put his gun to her head
and told her to put her hands up, she recognized Giang's voice because she had worked with him
and talked to him on several occasions at IBP. She then identified Giang as that person in the
courtroom.

Ann also testified that she recognized a gunman other than Giang. Upon hearing one
gunman call another one "Nam," she looked up and recognized Nam Nguyen. She testified that
she was able to recognize him because she had worked with him at IBP.

Detective Brian Ruder testified about the photographs depicting Giang entering the Kwik
Shop at 3:17 a.m. the day of the intrusion. Other photographs depicted Giang, his brother Nam,
and Ngan Pham at the checkout counter buying bottled water.

To support the State's conspiracy counts Agent Falletti was called to testify about parts of
the interview he conducted with Ngan Pham on November 12, 2002, in Liberal. The defendant
objected on hearsay grounds, and the court overruled the objection.

According to Falletti, Pham told him that on November 10, 2002, in the parking lot of the
Ton-Ton pool hall in Liberal, he discussed with both Nam and Giang Nguyen what they were
going to do when they arrived in Garden City. Pham indicated that the three men drove to Garden
City in Pham's 1991 blue Pontiac Firebird, stopped at the local "Kwik Trip" to purchase some
items, and then parked in front of 522 Colony. At Pham's instruction, one of the individuals cut
Pham's T-shirt into strips to tie up the home occupants. All three men wore black ski masks and
were armed: Pham carried a silver .45 caliber pistol, Giang carried a .45 caliber pistol provided
by Pham, and Nam carried a 9 mm pistol. According to Pham, they were after the Nguyen
family's money.

The State called interpreter Dam Dinh and Detective Schieffelbein to testify about the
interview they conducted in Salina. Dam Dinh's testimony did not provide any new or
contradicting facts from the testimony he gave at the suppression hearing. The defense renewed
its objection to Detective Schiffelbein testifying about Giang's Salina confession, which was
overruled.

Schiffelbein told the jury that through the interpreter, Giang informed the detectives that
on November 10, 2002, he met with Nam Nguyen and Ngan Pham in Liberal to discuss robbing
some people in Garden City. Giang told the detectives the three men drove in Ngan Pham's
vehicle and arrived in Garden City at approximately 4:40 a.m. on November 11, 2002. They first
stopped off at a gas station to buy some water, and then drove to a residence, but Giang was
unsure of the address or street name. When they arrived at the residence, the three men waited in
the car for roughly 25 minutes. While they were waiting they put on ski masks and yellow
gloves; all three possessed handguns. When the garage door to the residence opened, Nam
Nguyen and Ngan Pham left the vehicle and approached the person who had left the house.
Giang initially stayed in the car but eventually entered the residence.

Once in the residence, Giang went through the house in order to locate more people. He
went into one of the upstairs bedrooms and forced one of the daughters into the living room at
gunpoint. After all the family members were in the living room, Giang continued through the
house looking for money.

According to Schiffelbein, Giang told the detectives that while in one of the back
bedrooms, he heard a commotion in the living room and came out to investigate. He saw his
brother, Nam, fighting in the kitchen with Thang Nguyen. Ngan Pham then ran up, shoved Thang
to the floor, and shot him twice. Shortly after the gunshots were fired, he, Nam Nguyen, and
Ngan Pham all ran out of the residence. They got into Pham's vehicle and drove to Wichita. Once
in Wichita the three men split up, and Giang gave his gun, gloves, and ski mask back to Ngan
Pham. Giang went to stay with his girlfriend in Salina and turned himself in to the Saline County
authorities after hearing that Ngan Pham had been arrested.

The State proffered Detective Watson's testimony. After hearing the proffer, the court
ruled as follows:

"If the testimony comes in as the State has proffered, I'm going to find that once
he was
Mirandized for the day, that the statements were not coerced from him; that he freely
and
voluntarily gave this information to the detective and that he–the statements would be
admissible."

Watson then testified similar to his suppression hearing testimony about his conversation
with Giang on the truck drive from Salina to Garden City.

The jury found Giang guilty of first-degree felony murder, aggravated kidnapping, five
counts of kidnapping, aggravated burglary, conspiracy to commit kidnapping and conspiracy to
commit aggravated burglary, but not guilty on six counts of aggravated robbery for some missing
jewelry. He was sentenced to life in prison with the possibility of parole in 20 years. He was also
sentenced to 165 months for aggravated kidnapping to be served consecutively to the life
sentence, with concurrent sentences on the remaining counts.

ANALYSIS

Issue 1: Did the district court err in allowing into evidence certain
information from the
confession by coconspirator Ngan Pham?

Giang first contends that Agent Falletti's testimony describing certain information
obtained from his interview of Ngan Pham was wrongfully admitted into evidence because Giang
was not given the opportunity to cross-examine Pham as required by Crawford v.
Washington,
541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). The State responds that the district court
correctly allowed the testimony under K.S.A. 60-460(i)(2) because Giang was charged with
conspiracies. Our standard of review is de novo. See State v. Carter, 278 Kan. 74,
77-78, 91 P.3d
1162 (2004) (when the underlying facts are undisputed, this court's review of whether a
Confrontation Clause issue arose is de novo).

The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him." See Crawford v. Washington, 541 U.S. at 42. The controlling law during
Nguyen's jury
trial, Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), held
that the
statement of a hearsay declarant who is unavailable for trial may be admitted only if it bears
"adequate 'indicia of reliability.'" 448 U.S. at 66. Under Roberts a statement will be
admitted if it
falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of
trustworthiness." 448 U.S. at 66.

Falletti's testimony describing certain information from his interview of Ngan Pham was
admitted into evidence per Roberts under K.S.A. 60-460, which states:

"Evidence of a statement which is made other than by a witness while testifying at
the
hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible
except:

. . . .

"(i) As against a party, a statement which would be admissible if made by the
declarant at
the hearing if . . . (2) the party and the declarant were participating in a plan to commit a crime or
civil wrong and the statement was relevant to the plan or its subject matter and was made while
the plan was in existence and before its complete execution or other termination . . . ."

Approximately 1 year after Giang's April 2003 jury trial, however, the United States
Supreme Court limited Roberts' reach. In Crawford v. Washington, the
Court held that out-of-court statements by witnesses that are testimonial are barred under the
Confrontation Clause
unless witnesses are unavailable and the defendant had a prior opportunity to cross-examine
regardless of whether such statements are deemed reliable by the court. 541 U.S. at 68. The Court
also held that police interrogations constitute testimonial hearsay: The Clause's "primary object"
is testimonial hearsay, and "interrogations by law enforcement officers fall squarely within that
class." 541 U.S. at 53.

Giang's appeal was pending at the time Crawford was released in March
2004. We
applied Crawford's holding in State v. Meeks, 277 Kan. 609, 88 P.3d
789 (2004), which was on
appeal at the time of Crawford's release. See also Whisler v. State, 272
Kan. 864, 36 P.3d 290
(2001) ("The court's general rule with regard to application of an overruling decision has been
stated as applying the decision 'retroactively to all similar cases pending as of the date of the
overruling decision, regardless of when the cause of action accrued.'"). Accordingly, under
Meeks
and Whisler the Crawford decision applies retroactively to the
instant case.

Agent Falletti testified he was conducting an interrogation; there is no doubt that Pham's
responses are testimonial. For reasons undisclosed in the record on appeal, Pham did not testify
at Giang's trial or other proceedings, denying Giang the opportunity to confront him through
cross-examination. We hold that the admission of parts of coconspirator Pham's confession
violated Giang's Sixth Amendment right of confrontation and this evidence should have been
excluded. See, e.g., United States v. Rodriguez-Marrero, 390 F.3d 1,
15-17 (1st Cir. 2004);
United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004). Accordingly, K.S.A.
60-460(i)
cannot serve as a basis for admission.

Giang argues that even if Crawford did not trump K.S.A. 60-460(i) under
these
circumstances, Pham's confession was not made "while the plan was in existence" as the statute
requires. The State responds that the plan was still in existence because not all of the conspirators
had been arrested at the time of his confession. Although now unnecessary to our resolution of
the Pham issue, for future reference we address the prosecution's use of the statute.

State v. Myers, 229 Kan. 168, 625 P.2d 1111 (1981), supports Giang's
argument. There,
this court considered the admissibility of statements–by an alleged coparticipant
implicating the
defendant in a homicide–which were made approximately 3 1/2 hours after the homicide
occurred. We held:

"Under K.S.A. 60-460(i)(2), hearsay statements made by a coparticipant which
implicate
the accused in a crime are admissible against the accused only while the plan to commit the
crime
is in existence and 'before its complete execution or other termination.' Under this exception, this
court has consistently held that hearsay statements of a coconspirator or coparticipant which
implicate the accused and are made after the crime has been consummated are not
admissible
against the accused. [Citations omitted.]" (Emphasis added.) 229 Kan. at 173.

Here, Pham's confession was made to Falletti a day after the home intrusion occurred. By
then, the conspirators had left Garden City and at least Pham and Giang had gone to Liberal and
Salina, respectively. Nothing in the record indicates they planned on returning to 522 Colony.
Accordingly, the confession was given after the "complete execution" of the crime and, even
absent Crawford, K.S.A. 60-460(i) could not provide a basis for its admission into
evidence.

Harmless Error

The State contends that even if the confession excerpts were erroneously admitted, the
error was harmless. We have held that when reviewing a constitutional challenge to the
admission of evidence, we apply the federal harmless error rule. State v. Atkinson,
276 Kan. 920,
930, 80 P.3d 1143 (2003) (Confrontation Clause violation). Post-Crawford, a
number of federal
circuit courts of appeal have specifically subjected Crawford violations to harmless
error
analysis. See United States v. Summers, 414 F.3d 1287, 1303-04 (10th Cir. 2005);
United States
v. Pugh, 405 F.3d 390, 400-01 (6th Cir. 2005); United States v. McClain, 377
F.3d at 222; United
States v. Rodriguez-Marrero, 390 F.3d at 18.

Under the federal constitutional rule, "an error may not be held to be harmless unless the
appellate court is willing to declare beyond a reasonable doubt that the error had little, if any,
likelihood of having changed the result of the trial. [Citation omitted.]" 276 Kan. at 925.

In Atkinson, we approvingly cited the following passage from
Delaware v. Van Arsdall,
475 U.S. 673, 684, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), to explain application of the
harmlessness rule in the particular context of a Confrontation Clause issue:

"'The correct inquiry is whether, assuming that the damaging potential of the
cross-examination
were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a
reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of
factors, all readily accessible to reviewing courts. These factors include the importance of the
witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the overall strength
of
the prosecution's case.' [Citation omitted.]" 276 Kan. at 930.

Giang argues, however, that we should first apply the state harmless error rule contained
in K.S.A. 60-261, which provides:

"No error in either the admission or the exclusion of evidence and no error or
defect in
any ruling or order or in anything done or omitted by the court or by any of the parties is ground
for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights of the parties."

According to Giang's brief, violation of his Sixth Amendment confrontation right is
"inconsistent with substantial justice" and most certainly affects his substantial rights. He argues
that the state harmlessness inquiry, unlike the federal, is not a review of whether there was
sufficient evidence presented that a defendant would have been convicted without the offending
evidence, but rather a review to determine whether he or she ultimately received a fair trial,
i.e.,
an invitation for us to "look at the procedures." He asserts that where, as here, a defendant was
denied one of the fundamental requirements we employ to ensure a fair trial, it cannot be said
that his trial was fair.

Giang's counsel elaborated upon this point at oral arguments. He claimed that reversal is
particularly required when the trial-absent, previously uncross-examined declarant is a
coconspirator in police custody, i.e., one who has the incentive to exculpate himself
or herself
and to inculpate the defendant as much as possible.

According to Giang, only if the State demonstrates that the error was harmless under
K.S.A. 60-261 does this court proceed to the federal standard that requires us to declare beyond a
reasonable doubt that the error had little, if any, likelihood of having changed the result of the
trial. He acknowledges that we have only applied the two-step analysis recently in two cases,
both involving prosecutorial misconduct: State v. Tosh, 278 Kan. 83, 91 P.3d 1204
(2004), and
State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998).

We first observe that as recently as 2003, in Atkinson–where we
found a violation of the
Confrontation Clause because a defendant was limited in his cross-examination of the
victim–we
applied only the federal harmless error standard.

By analogy, even more recently, in State v. Swanigan, 279 Kan. 18, 106 P.3d
39 (2005),
we held that the erroneous admission of a defendant's involuntary confession was measured by
the federal harmless error standard. Moreover, we disapproved language from our earlier case
law that suggested the admission was structural error, i.e., requiring automatic
reversal. We cited
Arizona v. Fulminante, 499 U.S. 279, 296, 309, 113 L. Ed. 2d 302, 111 S. Ct. 1246
(1991),
which held that although "the defendant's own confession is probably the most probative and
damaging evidence that can be admitted against him," the admission of a coerced confession is a
"trial error" and not a structural defect affecting the framework within which the trial proceeds.
Accordingly, in Fulminante the Supreme Court held that the harmless error rule
applied. See
Neder v. United States, 527 U.S. 1, 8, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999)
(so-called
structural errors subject to automatic reversal exist in a very limited class of cases).

Because we have applied only the federal harmless error rule in Confrontation Clause
cases, and because we have applied only the federal harmless error rule in cases involving the
defendant's own involuntary confession–which the Supreme Court has held is probably
the most
probative and damaging evidence that can be admitted against a defendant–we see no
reason to
deviate from applying only the federal rule to the erroneous admission of the absent
coconspirator's statements in the instant case.

Moreover, in both Donesay and Tosh we concluded that the
prosecution's conduct was so
prejudicial that it ultimately denied the defendants a fair trial, our overarching consideration. In
Donesay, we held that the widow's 28 pages of testimony about her police officer
husband's
relationship with her, other family members, and friends was patently irrelevant to any material
fact of the crimes charged. After noting that the only real question was whether the killing of her
husband was premeditated, we concluded the testimony was deliberately presented by the
prosecutor for the obvious purpose of infuriating and inflaming the jury, i.e.,
intended to
improperly influence the jury and prejudice Donesay's right to a fair trial. See
Donesay, 265 Kan.
at 89.

In Tosh, we held that the prosecutor engaged in misconduct in four different
instances: his
comments during cross-examination of a defense witness, his questioning of the defendant, his
different comments during his initial closing argument, and his comments during his rebuttal
closing argument. We concluded that the cumulative effect of the four incidents required
reversal. Among other things, we held that the prosecutor's improper cross-examination of the
defendant was done in bad faith to put before the jury highly prejudicial, false, and inadmissible
evidence. 278 Kan. at 98. We concluded:

"As in Donesay, the admission of [all] this evidence was inconsistent with
substantial justice and
was intended to inflame the jury. The prosecutorial misconduct in the present case was so
egregious, gross, flagrant and prejudicial that Tosh's conviction must be reversed and he must
receive a new trial." 278 Kan. at 98.

Accordingly, even if we were to use Giang's proposed two-step analysis, the first
step–K.S.A. 60-261 as applied in Donesay and
Tosh–does not provide him relief. The facts
simply do not support the intentional State conduct that was designed to inflame the
Donesay and
Tosh juries. Here, the State simply offered only portions of Pham's confession
through Falletti.
Because the evidence was provided only to support the conspiracy claims, those portions appear
to be carefully limited to the events before the masked men entered the house at gunpoint,
kidnapped the entire Nguyen family, and shot Thang to death. In short, this evidence, admittedly
in violation of Giang's constitutional right of confrontation, did not prevent him from receiving a
fair trial.

Now that we limit our review to application of the federal standard for harmless error we
observe:

The parts of Pham's confession that were admitted essentially confirmed the same aspects
of Giang's confession. Both men indicated they met with each other in Liberal, along with Nam
Nguyen on November 10, 2002, to discuss robbing a family in Garden City. Their statements
both indicated that the three men drove in Pham's car to Garden City and stopped at the local
Kwik Shop. Finally, both statements indicated that before entering the house they donned black
ski masks, grabbed loaded handguns, and entered the home to look for money.

The State also presented evidence independent of Pham that corroborated Giang's
confession. All of the family members essentially testified to the same order of events as
described in Giang's confession. Additionally, the Garden City Kwik Shop surveillance photos
corroborate Giang's statement that the three men from Liberal stopped there early in the morning
before proceeding to 522 Colony. The photographs taken of the .45 caliber and 9 mm handguns,
black ski masks, and yellow gloves found in Pham's car on November 12, 2002, are consistent
with Giang's confession that he gave the items he used in the intrusion back to Pham before
leaving Wichita the day before. Hong Nguyen testified that she recognized Giang, a former
coworker, as one of the gunmen after hearing his voice. Ann Nguyen testified to recognizing her
former coworker, Giang's brother Nam, after one of the other gunmen referred to him as "Nam."

In short, having reviewed the factors identified in Atkinson, 276 Kan. at 930,
including
the overall strength of the prosecution's case, we conclude the error was harmless because it had
little likelihood of changing the result of the trial. See United States v.
Rodriguez-Marrero, 390
F.3d at 8 (erroneous admission of absent coconspirator's statement had little likelihood of
changing the result of the trial); United States v. McClain, 377 F.3d at 222-23
(same).

Issue 2. Did the district court err in denying Giang's motion to suppress his own
statements to
police?

Next, Giang contends that his own statements to the police should be suppressed for three
reasons: (1) The interpreter was not qualified under K.S.A. 75-4353; (2) Giang should have been
readministered Miranda warnings before giving his statement to Detective
Schiffelbein in Salina
and before his later statement to Detective Watson on the way from Salina to Garden City; and
(3) his statement to Detective Watson was coerced. The State responds that Giang's statements
were voluntary and uncoerced and that no additional Miranda warnings were
required after
Giang's waiver.

In reviewing a trial court's decision regarding the suppression of a confession, an
appellate court reviews the factual underpinnings of the decision by a substantial competent
evidence standard and the ultimate legal conclusion by a de novo standard. Swanigan,
279 Kan.
18, Syl. ¶ 1.

"(a) No one shall be appointed to serve as an interpreter for a person pursuant to
the
provisions of K.S.A. 75-4351, and amendments thereto, if such interpreter is married to that
person, related to that person within the first or second degrees of consanguinity, living with that
person or is otherwise interested in the outcome of the proceeding, unless the appointing
authority
determines that no other qualified interpreter is available to serve.

. . . .

"(c) In appointing a qualified interpreter for a person whose primary language is
other
than English pursuant to the provisions of K.S.A. 75-4351 et seq., and amendments thereto, the
appointing authority shall appoint: (A) A qualified interpreter who meets the following
criteria; . . . :

(1) A general understanding of cultural concepts, usage and expressions of the
foreign
language being interpreted, including the foreign language's varieties, dialects, and accents;

(2) the ability to interpret and translate in a manner which reflects the educational
level
and understanding of the person whose primary language is other than English;

(3) basic knowledge of legal rights of persons involved in law enforcement
investigations, administrative matters and court proceedings and procedures, as the case may be;
and

(4) sound skills in written and oral communication between English and the
foreign
language being translated, including the qualified interpreter's ability to translate complex
questions, answers and concepts in a timely, coherent and accurate manner."

Giang argues that there is insufficient evidence to demonstrate that the interpreter, Dinh,
satisfies the statutory requirements. He claims that Dinh violates the statute because he had an
interest in the interrogation proceedings; did not possess the ability to interpret and translate in a
manner which reflects the education level and understanding of a person whose primary language
is other than English; and did not have the basic knowledge of legal rights of persons involved in
law enforcement investigations, administrative matters, and court proceedings and procedures.

As far as interest in the proceedings, Dinh testified that he was paid by Finney County for
his interpreting services during the interrogation. He also testified that he was not threatened with
nonpayment if he did not do what the officers wanted him to do. He did not know Giang, the
victim Thang, Thang's family, or any of the officers involved in the matter. He was also paid for
his services at trial.

As far as ability to interpret and translate, Dinh's cradle language is Vietnamese; he
learned English by attending high school in the United States beginning 15 years ago. Although
there are differences in accents between South and North Vietnamese, he stated he had no
problem communicating with Giang in Vietnamese, he understood Giang, and he believes that
Giang understood what he was translating.

As far as basic understanding of legal rights, Dinh testified that he began interpreting
Vietnamese for law enforcement in 1992. During the 10 years preceding Giang's interrogation,
Dinh likely acquired basic knowledge of legal procedures. He is currently the main interpreter for
the Saline County Police Department.

Giang argues that he received little education in Vietnam; that he therefore had trouble
understanding Dinh at times; and that Dinh neglected to inform him of his right to an attorney.
Dinh, however, is an experienced law enforcement interpreter, and Schiffelbein testified that
Dinh read each Miranda warning element to Giang. When Schiffelbein asked if
Giang
understood all of his rights, Giang replied, "Yeah." This court does not reweigh evidence, pass on
the credibility of witnesses, or resolve conflicts in the evidence. Swanigan, 279 Kan.
at 23.

Substantial competent evidence supports the trial court's finding that Dinh was qualified
based on his experience and that he was able to properly convey Giang's legal rights to Giang,
factors to be considered in the totality of circumstances for ultimately determining the
voluntariness of Giang's statement. Cf.State v. Zuniga, 237 Kan. 788,
791-92, 703 P.2d 805
(1985) (Whether or not an interpreter is appointed and is present at the taking of the statement,
the trial court must still determine whether an in-custody statement was freely, voluntarily, and
knowingly given, with knowledge of the Miranda rights. That determination must be
based upon
the totality of the circumstances.).

Readministering Miranda

Giang argues that although he received Miranda warnings at 4 p.m., which he
waived in
writing before his oral confession, he should have been readministered Miranda
warnings prior
to providing his written statement at 6 p.m. and prior to his interrogation by Detective Watson
during the latter stages of the trip from Salina to Garden City that began at 9:07 p.m.

We recently analyzed when suspects need to be re-Mirandized after waiver of
those rights
in State v. Mattox, 280 Kan. 473, 124 P.3d 6 (2005). Greatly summarized, we held
that the
answer is a conclusion of law made by considering the totality of the circumstances. One factor
for consideration is the time interval between the waiver of one's Miranda rights and
the giving
of his or her statement. Mattox, 280 Kan. at 487-88.

Under the rationale of Mattox, we conclude as a matter of law that it was
unnecessary for
Detective Schiffelbein to readminister Miranda to Giang. Giang was advised of his
Miranda
rights through the use of an interpreter and signed a waiver at 4:04 p.m. He then orally confessed.
Around 6 p.m., Giang agreed to make a written statement. The same detective who administered
Miranda to Giang–Schiffelbein–also took his statements. There is no
evidence in the record that
anything happened after the waiver that affected Giang's understanding of his rights. See,
e.g.,
Brown v. State, 661 P.2d 1024, 1031 (Wyo. 1983) (totality of circumstances
considered to
determine "whether the prior [Miranda] warnings were effective to sufficiently
advise the
accused of his constitutional rights so that the prior voluntary and knowing waiver of those rights
continued its efficacy").

As for Detective Watson's failure to re-Mirandize Giang, we observe that he
picked up
Giang at 9:07 p.m., approximately 5 hours after the Miranda warning was
administered and the
rights waived, and delivered him to the jail in Garden City at approximately midnight. Under the
rationale of Mattox, a waiver does not expire through the mere passage of 5 to 8
hours when a
suspect has been in continuous custody. See, e.g., United States v. Andaverde,
64 F.3d 1305,
1313 (9th Cir. 1995) (1-day interval between waiver of Miranda rights and
defendant's statement
to law enforcement not unreasonable under circumstances). Nor is there anything in the record to
suggest Giang did not understand his Miranda rights during that ride, particularly
when Watson
was one of the detectives present when Giang had been Mirandized, waived his
Miranda rights,
and confessed in Salina earlier that evening. We therefore conclude as a matter of law that
Giang's waiver in Salina continued its efficacy. See Brown v. State, 661 P.2d at 1031
(waiver of
Miranda rights continued its efficacy).

Voluntariness of Statements Given On Transport to Garden City

Next, Giang argues that the district court erred in admitting the statement given in the
truck to Detective Watson because it was not voluntary under the totality of the circumstances.
According to Giang, the statement consisted solely of his "direct[ing] Detective Watson to the
house that was robbed." The entire factual allegation for his argument is as follows:

"Here, Giang had been shackled on the legs, handcuffed and those cuffs were
connected
by another chain for a three hour drive, locked in the vehicle with the much larger, much heavier
Detective Watson. Because he was locked up in a car with Detective Watson, Giang had no
opportunity to speak with anyone in the outside world. Detective Watson knew that Giang was a
young man who had minimal education and was from a completely different culture. Detective
Watson unfairly began his questioning when Giang was most vulnerable, having just woken up."

In determining whether a confession is voluntary, a court is to look at the totality of the
circumstances, including the duration and manner of the interrogation; the ability of the accused
on request to communicate with the outside world; the accused's age, intellect, and background;
and the fairness of the officers in conducting the interrogation. Swanigan, 279 Kan.
18, Syl. ¶ 2.
An additional circumstance for consideration is the accused's fluency in the English language.
State v. Garcia, 243 Kan. 662, Syl. ¶ 8, 763 P.2d 585 (1988). The essential
inquiry in
determining the voluntariness of a statement is whether the statement was the product of the free
and independent will of the accused. Swanigan, 279 Kan. 18, Syl. ¶ 2.

At the outset, we observe that Giang's directing Detective Watson to 522 Colony came 1
day after coconspirator Ngan Pham, and only several hours after Giang himself, had provided
numerous details to law enforcement about the planning and execution of the crime of
aggravated burglary, which resulted in multiple kidnappings and a murder in the Nguyen home in
Garden City. Accordingly, any error in the admission of Giang's truck statement pointing out the
specific location of the crimes would be harmless. See State v. Swanigan, 279 Kan.
18.

Giang's argument that he was adversely affected by the duration and manner of the
interrogation because he was handcuffed during the entire drive, and Detective Watson was a
much larger and intimidating figure, is greatly diluted by the fact that Watson testified Giang fell
asleep not long after the trip began and awakened only near its end approximately 3 hours later.
Additionally, in State v. Harris, 279 Kan. 163, 168, 105 P.3d 1258 (2005), this court
ruled that
being shackled to the floor for 7 hours during an interrogation did not weigh in favor of finding a
confession involuntary. Under Harris, the fact that Giang was handcuffed and
shackled during
the trip to Garden City does not alone render his statement involuntary.

As for an intimidating presence, this court addressed the issue in State v.
Bell, 276 Kan.
785, 80 P.3d 367 (2003). There, the interrogator made

"some questionable comments to the defendant. For example, he told the defendant to tell
the truth
or suffer the consequences. When the defendant said that he did not care about the stripes on the
officer's uniform, Sergeant Miller told the defendant that the defendant was going to have a lot
more stripes of his own, seemingly in reference to a prison uniform. When leaving the interview,
Sergeant Miller told the defendant that he would see him again." 276 Kan. at 798.

The court ruled:

"These comments, while seemingly improper, do not affect the voluntariness of
the
defendant's statement when viewing the entire interview as a whole. Sergeant Miller did not raise
his voice, stand up, or act in a threatening manner toward the course of the interview. The
defendant's will was not overborne, as he frequently argued with Sergeant Miller and eventually
asked him to leave the interview." 276 Kan. at 798-99.

Here, Detective Watson did not threaten Giang or use force against him. When Giang
inquired about what was going to happen to him, Watson responded that he could not answer
those types of questions. Giang testified that he was too afraid to ask for food or to go to the
bathroom, but Giang also initiated conversation with the detective and engaged in small talk.
Although Detective Watson may have appeared intimidating to Giang, under Bell,
the detective's
demeanor did not affect the voluntariness of Giang's statement.

As for Giang's claims that he was isolated in the truck and denied access to the outside
world, in Harris this court ruled a defendant was not denied access to the outside
world even
after being denied a request to phone an alibi. 279 Kan. at 168-69. Likewise in Bell,
this court
ruled that the officers' refusal to allow defendant to see his mother did not render the statements
involuntary. 276 Kan. at 798. Watson testified that Giang did not request to speak with an
attorney or to anyone else, never requested to be let out of the car to use the restroom or get
something to eat or drink. In fact, he slept much of the way. Giang was not denied the ability to
communicate with the outside world.

Regarding Giang's age, intellect, and background, he was 24 years old at the time of the
truck ride. He had grown up in Vietnam and completed the 6th grade in Vietnam. Giang came to
the United States in 1996 and attended high school for approximately 2 months before dropping
out. Giang was convicted of criminal trespassing 3 years prior to his current arrest.

Finally, regarding Giang's claim that Detective Watson unfairly questioned him knowing
his minimal education and background and his having been recently awakened, Watson testified
that Giang initiated the trip's conversation with him in English and Watson understood Giang's
responses: "He had a very pronounced accent, but it was–made it difficult to understand
him
sometimes but I could understand what he was talking about. We conversed for quite a bit and I
could understand his English."

Giang also possessed the ability to give directions in English. Detective Watson testified:

"We got to the exit and on ramps off of 156 and the bypass, and he told me to go
north–excuse
me, south on the bypass. We went south on the bypass and came to the light at Spruce, and he
told
me to make a right onto Spruce, which I did, and I continued west on Spruce and then he told me
to go south on Colony."

Based on Watson's testimony, we conclude his asking Giang to point out the Nguyen
home did not unfairly take advantage of Giang's education and background. See State v.
Nguyen,
251 Kan. 69, 78, 833 P.2d 937 (1992) (officers did not act unfairly in continuing
interrogation
after defendant informed them of his difficulty with the English language because officers asked
open-ended questions and when defendant decided to cooperate he had no trouble understanding
and communicating).

As for Giang having been recently awakened and therefore at his most vulnerable,
Watson's testimony indicates sufficient time elapsed, from Giang's waking up outside of town
until he eventually pointed out the house, as to make this factor insignificant.

As stated previously, Giang was read his Miranda
rights through the use of an interpreter,
signed a waiver, and then provided substantial details of the crime in Salina. Under the totality of
the circumstances, including English as Giang's second language, we can independently conclude
as a matter of law that his later statements regarding the location of the crime scene were made
freely, knowingly, and understandingly with full knowledge of his Miranda rights.
See Garcia,
243 Kan. 662. See also State v. Swanigan, 279 Kan. 18, Syl. ¶ 1, 106
P.3d 109 (2005) (whether
confession is voluntary is conclusion of law).

The district court properly admitted Giang's statements at trial.

Issue 3: Did the district court err in allowing into evidence certain photographs?

Giang argues that exhibits 54 and 58 are repetitive and of little probative value. He
contends the State was allowed to produce duplicative testimony from the coroner by having her
explain what injuries the victim Thang sustained and then repeat the same testimony with the
pictures of that injury. As at trial, the State contends these exhibits were used to show the identity
of the person upon whom the autopsy was performed and also to assist the jury in determining
the entrance and exit wounds.

Giang does not dispute the photographs' relevance, our threshold consideration when
considering their admissibility. See State v. Torres, 280 Kan. 309, 121 P.3d 429
(2005). When
reviewing whether the photographs are cumulative, we use an abuse of discretion standard of
review. Torres, 280 Kan. at 327 (citing State v. Parker, 277 Kan. 838,
847, 89 P.3d 622 [2004]).
There, we observed that the admission of photographs in a murder case has rarely been held to be
an abuse of discretion. 280 Kan. at 327 (citing State v. Deal, 271 Kan. 483, 493, 23
P.3d 840
[2001]).

As noted, Exhibit 54 is a close-up of the victim's face, and Exhibit 58 depicts him lying
shirtless on the autopsy table exposing two gunshot wounds on the left side of his chest. The
former was used to identify the shooting victim. The latter was used to show the bullet wounds,
i.e., to explain the cause of death, which this court has routinely approved in
conjunction with
coroner testimony. See, e.g., State v. Deal, 271 Kan. 483, 493, 23 P.3d
840 (2001); State v. White
& Stewart, 225 Kan. 87, 91, 587 P.2d 1259 (1978).

The district court did not abuse its discretion in admitting them into evidence.

Issue 4: Did the district court err in determining that Giang's convictions of felony
murder and
aggravated kidnapping are not multiplicitous?

Giang argues that the charges of felony murder and aggravated kidnapping are
multiplicitous because the same act of force was the basis for both convictions. He therefore asks
that the case be remanded with instructions that the aggravated kidnapping charge be amended to
simple kidnapping.

The State responds that there is no multiplicity problem because two shots were fired, one
to Thang's back while he was standing upright and the other to his chest while he was on his
knees or near the ground. The State contends that the chest shot occurred last and was the most
lethal. The State also argues that if we find multiplicity, then this court has the authority to
convict Giang of the lesser offense of kidnapping pursuant to State v. Robbins, 272
Kan. 158,
179, 32 P.3d 171 (2001).

Issue 5: Were Giang's rights of confrontation violated when the district court admitted
his own
statements into evidence?

Finally, Giang complains that his right to confront witnesses against himself under the
Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution
Bill of
Rights was violated when the State presented the jury with evidence of his statements to the
Garden City detectives. As in issue one, Giang relies heavily on Crawford v.
Washington, 541
U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), as support for his argument. As noted in
issue one, in Crawford the Court held that testimonial statements of unavailable
witnesses are
inadmissible unless the defendant was afforded an opportunity to cross-examine those witnesses.
Giang claims that Crawford applies also to statements made by a defendant to police.

Giang also claims that he is in a "catch-22" in that either he can forego his Fifth
Amendment right and testify himself about the alleged statement, or he can exercise his Fifth
Amendment right and allow the unchecked testimonial statements to enter into evidence. He
argues that this dilemma is a violation of the doctrine of unconstitutional conditions, as
illustrated by Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct.
967 (1968).

Giang's argument was not presented to the trial court, and no objection was made when
the statements were introduced into evidence. Generally, where constitutional grounds are
asserted for the first time on appeal, they are not properly before this court for review. State
v.
Denney, 278 Kan. 643, 651, 101 P.3d 1257 (2004). Additionally, a timely and specific
objection
for the admission of evidence is necessary to preserve the issue for appeal. State v. Diggs,
272
Kan. 349, 365, 34 P.3d 63 (2001); see K.S.A. 60-404.

"Torres' right against self-incrimination and his right to confront the witnesses
against
him are not conflicting. Torres was not compelled to disclose information to law enforcement,
but
he chose to do so. We are unaware of any authority holding that 'confronting oneself' at trial
under
these circumstances is a right guaranteed by the Sixth Amendment. Torres fails to show that his
Sixth Amendment rights were violated." 280 Kan. at 318.

Similarly, Giang fails to show that his right of confrontation was violated.

The district court is affirmed.

LARSON, S.J., assigned.1

1 REPORTER'S NOTE: Senior Judge Edward Larson was
assigned to hear case No. 91,350
pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court resulting from Justice Gernon's death.